Thread by @lewis_goodall

OK SUPREME COURT DAY 2

Living my best life here.

before we start in earnest, was reflecting last night that this week's events rather vinidcate the Blair govt's decision to remove our highest court from the Parliament. Imagine if this, an issue about prorogation, in these circs, had to go via the Law Lords?

Aim was to take the court out of politics. Insofar as it can be, this is clearly the better system.

Lord Kerr gets to the absolute heart of this case: (echoes Pannick question yesterday). What happens if for political reasons a prime minister were to try and prorogue for a much longer period?

Eadie responds that we shouldn't test these principles against such extreme examples.

Eadie replies that there are "political controls" available to Parliament, inferring that MPs could have/should in those circs vote against the govt in a motion of conf/vote for an election.

I suspect that how the justices feel about these questions will determine outcome.

I suppose one of the problems with govt's argument that "political controls" could deal with a wayward prime minister is that what if that govt had a big majority? Then no conf motion/election would be impossible.

I've rarely seen greater happiness than in Lady Hale's face when she realised they were finally being given the correct bundle.

Eadie's main arguments boiling down to:

- Courts risk muddying separation of powers
- Courts have no basis on which to judge what are essentially political decisions.

Again Eadie is making argument that no conf motions and political remedies within Parliament, not the courts (or the Queen) are appropriate controls on a dodgy PM.

Problems:

- What if govt has majority?
- If Parl is prorogued by definition, it can't exert any control.

Lady Black pressing Eadie on "political controls" over the government. Asks how can they do so in a "time limited" situation. Kerr piles in again asking how you can control after a government, when prorogation has already taken place, especially in time sensitive period.

Eadie replies that even if it's October 31st there is still time for Parliament to act.

Lady Black doesn't seem terribly convinced.

Eadie trying to neutralise argument Parliament could have chosen to sat during conf season. Says Parl has made it clear well in advance in the past when it wanted to sit: "it could have chosen to do so" again.

It's a decent point.MPs could have seen this coming. They didn't act.

Of course you might argue MPs shouldn't have to second guess a govt wanting to use prorogation politically but we are where we are.

Core of government's case is that the Commons had ample time and mechanisms to act to control Brexit process and prevent prorogation but chose not to do so and it isn't for the courts to act for it when it chose inaction.

Eadie: the courts are being asked to intervene politically- in the name of parliamentary sovereignty- to insist that parliament sits when parliament itself has not. Says that's absurd.

This was the crux of Eadie's argument which won the case at the High Court in London.

Kerr seems especially sceptical of govt's arguments. Is pressing Eadie (govt QC) as to why the executive chose to prorogue over such a long period, rather than a conventional recess for party conferences. Eadie replies that parl had ample opportunity to regulate its own sittings.

Eadie saying rebel alliance could have added provision to Benn bill to control prorogation but chose not to. Is building up a case that Parliament is indeed sovereign, and in its sovereignty chose not to act and its not for the courts to do it for them post event.

Lord Wilson expresses frustration and puzzlement that they have no witness statement from the PM and all of the key players: "All we have are documents which are just floating around."

Eadie: "You have the documents you have."

Eadie says he has never been involved with a judicial review (and he's been involved in a fair few) where a minister has had to provide a witness statement. Civil servants often do but not ministers.

Kerr says the only case the govt is making is producing documents (da Costa memo/cabinet minutes) which predated the allegations over an illegitimate prorogation without much else to back it up.

Kerr cleverly trying to draw Eadie on whether there was any political gain to the govt's prorogation and implying the govt was clearly aware of it: "it's your contention that that advantage was purely incidental, was it?"

Now time for their lordships lunch.

Ok we’re back

Aidan O'Neill QC (only lawyer so far without a title as he pointedly observes) opens play arguing that Court of Session was right to rule prorogation unlawful.

Some gentle mocking of English political culture from O’Neill: “sometimes from English history you’d think the only two years which mattered were 1066 and 1966.”

Lady Hale: “You might have to explain why 1966 is significant.”

There’s no way she should be made to retire.

#fourmoreyears

O’Neill playing heavily on idea that the SC must pay attention to concerns around the union and take into account “separate traditions”, so take account of Scots law and what Scottish Court of Session said.

O’Neill: “This court will be well aware that we are not a nation state. But a state of nations.”

Ok now we are on Kipling and Macbeth. This is fun.

Now Orwell and the Tweed. Perhaps it was a very good lunch.

Honestly this is fabulous stuff. Anyone who is remotely interested in our constitution, politics and legal system should tune into this. It is the perfect erudition of so many of the big themes which have been so contested for the last few years and before.

Lady Hale has had enough of the Macbeth though: “perhaps we could move on to those issues”, with a twinkle in her eye.

O’Neill seeks to rebut govt’s case from earlier in the day. Says his appeal is not about creating new rules about when prorogation might be used, just asking whether this prorogation was “constant with fundamental principles of the constitution.”

O’Neill is taking aim at squarely at Boris Johnson: “to claim [ in our system]the executive is accountable to the people and not Parliament is not democracy but populism.”

O’Neill isn’t done with attacks on whole style of Johnson premiership and how it has handled Parliament: Says “when executive chooses a People’s PMQs” rather than PMQs in Parliament “undermines principle of accountability to Parliament.”

🔥🔥🔥

O’Neill says length of prorogation and time lost is irrelevant: “it’s not a question of how many days it is. It’s a question of what the effect and intent is. If the Benn Act can be passed I. 2 days, what could Parliament have done in 7? Or 35?” (If recess had been cancelled).

O'Neill urges court not to treat the government's published documents (girl swot memo etc) as "gospel" because we don't know that they're "the complete picture."

Ok this is getting weird. O'Neill just told off Lord Reed "for looking upset." Reed said he wasn't upset "just sceptical." O'Neill then went off on one. Not sure he's judged the mood right on this.

Reed, for reference, is due to take over as President of the Supreme Court in January.

O'Neill is implying that @nmdacosta did not mention Brexit in the documents she wrote because she knew it might be challenged in court.

@nmdacosta I'm not sure the judges are terribly impressed with all this.

@nmdacosta Kerr chimes in to suggest you can read the da Costa document as series of defences against the charge of a political prorogation.

@nmdacosta O'Neill: "It's not about the length. It's about what it's doing to our constitution."

@nmdacosta I don't think Lady Hale does annoyed but she seemed vaguely close just there.

@nmdacosta O'Neill: "I won't take much longer."

Lady Hale: "You have seventeen minutes precisely."

I adore her.

@nmdacosta Reed and O'Neill have beef and I really want to know what it is.

@nmdacosta Now the beef seems to be extending to much of the bench...

@nmdacosta There is a lot of quite heated chat about Scots law stuff. Temporarily quite lost. Sort of thing lawyers get worked up about.

@nmdacosta O'Neill dismisses Eadie charge that Parliament could have passed an anti-prorogation act and thereby consented to p: "there's only so much time people have to firefight and deal with the crisis. They had to prioritise what they had to."

@nmdacosta oh wow. O'Neill just implored the court not to allow this to be "your court's Dredd Scott moment."

That's the infamous Supreme Court decision which ruled that black people could not be citizens of the United States, even if they were free.

@nmdacosta O'Neill then goes onto invoke Abraham Lincoln by imploring the court to listen to "the angels of your better nature."

Lady Hale did not look impressed.

@nmdacosta Talking to assorted legal brains after the court broke up, the general consensus was one of bewilderment: "I've never seen anything like it."

@nmdacosta Get the distinct impression the audience for that wasn't the judges...

@nmdacosta Ah well. Over and out for another day with the Supremes. Tomorrow is no biggie. Just a former Conservative Prime Minister effectively taking one of his successors to court.

Good old Brexit Britain.

@nmdacosta